MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 3 ME 39 Docket: Oxf

- 22

- 260 Submitted

On	B riefs : April	19,	2023 Decided: July	20,	2023 Panel: STANFILL ,	C.J.,	and MEAD , HORTON , CONNORS , LAWRENCE	and	DOUGLAS , JJ.

STATE	OF	MAINE

v. HARRY	D.	EVERY

CONNORS ,	J. [¶1] Harry	D.	Every	appeals	from	a	judgment	of conviction	for burglary (Class	 A),	 17

- A M.R.S.	 § 401 (1)(B)(1) (20 18 ) ,	 entered	 by	 the	 trial	 court (Oxford County, Lipez,	J. ) after	a	jury	trial

. 1 The	issue	presented	relates	to	the

1 Every	was	also	convicted	of the	following other	crimes , which	convictions	he	does	not	appeal: domestic	 violence	 criminal	 threatening	 with	 a	 dangerous	 weapon	 (Class	 C), 17

- A	 M.R.S. § 209

- A(1)(A)	(20 18 ) ; domestic	violence	terrorizing	with	a	dangerous	weapon	(Class	C), 17

- A	M.R.S. §	 210

- B(1)(A)	 (20 18 ) ; domestic	 violence	 reckless	 conduct	 with	 a dangerous	 weapon (Class	 C) , 17

- A M.R.S.	§	211

- A(1)(A)	(20 18 ) ; and	obstructing	report	of	crime	or	injury (Class	D), 17

- A	M.R.S. § 758(1)(A)	(20 18 )

. We	cite	 to	 the	20 18 version s	of	 the	statutes ,	 the	one s in	effect	at	 the	 time	of Every’s	criminal	conduct, be cause 17

- A	M.R.S.	§§	209

- A(1)(A),	210

- B(1)(A) and 211

- A(1)(A) w ere recently	amended ,	though	the	amendments	are	not	relevant to	this	appeal

. Se e P.L. 2021 ,	ch.	647, §§ B

- 22 ,	 B

- 25,	 B

- 29 (effective	 Jan.	 1,	 2023) (codified	 at	 17

- A	 M.R.S.	 §§ 209

- A(1)(A) , 210

- B(1)(A), 211

- A(1)(A)	 (2023) )

. Additionally,	 according	 to	 the	 indictment,	 the charges	 related	 to domestic violence were	elevated	from	Class	D	to	Class	C	under	17

- A	M.R.S.	§	1252(4)	(2018)	because	Every used	 a	 dangerous	weapon.	 	Section	 1252,	 however,	 h ad	 been	 repealed	 and	 replaced	 nearly eight months	 before	 the	State	 charged	Every. See P.L. 2019,	 ch.	113 ,	 §§ A

- 1	 to

- 2 (emergency,	effective May 16,	 2019)	 (codified	 at 17

- A	M.R.S.	 §	 1604(5)(A)	 (202 3 ) ). This	 error	 does	 not	 affect Every’s convictions

. See M.R.U.	Crim.	P.	3(a) (“Error	in	the	citation	of	a	statute	or	its	omission	shall	not	be grounds	for	the	dismissal	of	the	complaint	or	for	reversal	of	a	conviction	if	the	error	or	omission	was not	prejudicially	misleading.”).2 circumstances	 in	 which	 an	 ex

- domestic	 partner	 can	 be “ not	 licensed	 or privileged” to	be o n	 the	premises where	he	previously	lived	with	his	 former partner

. W e affirm	the	judgment.
I. BACKGROUND [¶ 2 ] Because	 Ever y’s	 appeal	 is	 limited	 to	 challenging	 his burglary
conviction , we	 recite	 only the	 facts	 relevant	 to	 that	 crime .	 	 “ V iewing	 the evidence	admitted	at	trial	in	the	light	most	favorable	to	the	State,	the	jury	could rationally	have	fo und	the	following	facts	beyond	a	reasonable	doubt.” State	v. Athayde ,	2022	ME	41,	¶	2,	277	A.3d	387. [¶ 3 ]		Every	and	the	victim	were	in	a	romantic	relationship	from	2003	to 2019.		They	never	married	and are	the	parents	of one daughter .		In	2019,	the three	were	living	in	a	house that the	victim	rented in western	Maine

. A lthough there	was	no written lease, the	victim signed	a	paper	identifying	 the house’s occupants,	which	included	herself,	Every,	 their	daughter,	and	 their	pets.		She was	legally	and	financially	responsible	for	the	home. [¶ 4 ] On	Friday,	December	6,	2019 ,	th e	victim ended	her	relationship	with Every .		The	victim	informed	Every	 that	she	would	spend	 the	weekend	at	her parents ’	residence and	that	he	needed	to	move	out	by that Sunday.		He	complied by	taking	all	his	clothes and	moving	into	his	other	child’s	home	i n	Dixfield.3 [¶ 5 ]	 	 Throughout	 December,	 Every	 messaged	 and	 called	 the	 victim incessantly.		One night Every	called	the	victim	roughly	fifty	times , and she	began to	 fear	 that	 he	 would	 do “ something ” to	 himself	 or	 to	 her.	 	 Every	 still	 had housekeys	that	he	ref used	to	return	despite	the	victim	asking	him	to	do	so ,	and
at	 times he	would	come	and	go	 from	 the	house	when	he	pleased	despite	not having	permission	 from	the	victim. T he	victim	started	barricading	the doors with	furniture	at	night	in	case	he	tried	to	ent er. [¶ 6 ]		On	January	3,	2020,	while	at	work,	the	victim	received	a	message from	Every	asking permission to go	to	the	house	to visit	their	dog .		She agreed on	the	condition	that	he leave before	she	returned	home	at	roughly	6:00	p.m. She granted	 him	 this	 permission because	 the ir daughter	was	 home	 sick	 and Every	could	check	on	her.		Every	spent	the	day	there	and	left	around	5:30 p.m. [¶ 7 ] T he	victim came	home and	spent	the	night	with	the	d aughter .		She went	to	bed	around	12:45	a.m.	after	checking	to	make	sure that the	front	door was	 locked and	 secured	 with	 furniture

. A t some	 point	 that	 evening, unbeknownst	to	the	victim,	Every	entered	the	ho use through	the	basement. He knew	that	the	victi m	did	not	want	him there and	that	he was	supposed to	leave the	house by	6:00	p.m.		Every had	been	drinking	heavily	and had a	handgun with	him

. Around	1:15	a.m.,	Every	went	upstairs	and	terrorized the	victim with4 the	handgun,	resulting	in the other	convict ions	not	at	issue	here.		The	victim and	the	daughter both called	9

- 1

- 1	and	left	the	house	through	a	window.		The police	arrived,	coaxed	Every	out	of	the	house,	and	arrested	him. [¶ 8 ] Every	 was	 indicted for various	 offenses,	 including	 burglary , 17

- A M.R.S.	§	401(1)(B)(1). A fter	the	State	rested	in	his jury	trial , held in July
2022 , Every	moved to acquit ,	asserting	that	the	State	had	failed	to	prove that he	was	 not	licensed	 or	 privileged to	 be	in	 the house b ecause	 he	was legally present	on	the	premises	as	a	tenant

. See M.R.U.	Crim. P. 29(a).		The	court	denied the motion and	the	jury	ultimately	found	him	guilty

. Before	sentencing,	E very again moved	for a judgment	of	acquittal , s ee M.R.U.	Crim.	P.	29(b) ,	making	the same	argument, and	t he	court again denied his	motion.		The court	reasoned that the	licensed	or	privileged	element	focuse s on	actual	or	constructive	possession of the	premises , and that the	jury	could	have	found	that	Every	had	moved	out ; needed permission	to	visit ; left	the	house	before	the	victim	returned	that	day ; and ,	 given	 that	 he	 entered	 the	 house	 surreptitiously	 through	 the	 basement during	the	night, knew	he	was	not	permitted	to	enter. 2 Every	timely	appealed.

2 Every	was	sentenced	to	fifte en	years’	imprisonment	with	all	but	six	years	suspended	and	four years	of	probation	on	 the	burglary	charge,	 five	 years’	imprisonment	on each	of the	 three charges related	 to domestic violence,	and	 364	 days’	imprisonment	 on the charge	 of obstructing	 report	 o f crime	or	injury ,	with	a l l sentences to	be served	concurrently.5 II.		DISCUSSION [¶ 9 ] T he burglary	statute	provides	that	a	person	is	guilty	of	burglary	if “[t] he person	enters	or	surreptitiously	remains	in	a	structure	knowing	that	that person	is	not	licensed	or	privileged	to	do	so,	with	the	intent	to	commit	a	crime therein.”		17

- A	M.R.S.	§ 401( 1)(A).		Every	contends	that	the	State	failed	to	prove that	he	knew	that	he	was “ not	licensed	or	privileged ” to	be	in	the	house	that night because he	claims he had	a legal right	to	be there

. 3 [¶1 0 ] As	 the	 trial	court	reasoned	and	c ontrary	 to	Every’s	conte ntions, “licensed	or	privileged” within	the	meaning	of	the	statute refers	to	a	defendant’s possessory	 or	 occupancy	 rights,	 not	 legal	 rights or	 interests ,	 and	 whether	 a defendant knew that he lacked the	right	to	possess	or	occupy	a	structure is	a question	f or	the	fact	finder to	answer	based	on	the	totality	of	the	circumstances

. See State	v.	Haines ,	621	A.2d	858,	859	(Me.	1993)	(noting	that	“burglary	is	an offense	 against	 the	 security	 of	 habitation	 or	 occupancy,	 rather	 than	 against ownership	 or property”	 ( alteration	 and quotation	 marks	 omitted)); State	 v. McMillan ,	 973 A.2d	 287, 29 1

- 9 2 (N.H. 2009) ( explaining	 that burglary	 is

3 Every	also	argues	that	the	State	failed	to	prove	that	he	went	into	the house with	the	intent	to commit	a	crime	therein.		This	argument	is	unpersuasive.		The	jury	was	instructed	that	the	crime	Every intended	to	commit	therein	could	be	one	of	the	other	crimes with	which he	was	charged.		The	jury found	Every	guilty	of three	domestic violence	charges , so	there	is	a	reasonable	inference	that	the	jury found	 that	 he	 entered	 the	 house	with	 the	intent	 to	 commit	 at	least	 one	 of	 the	 domestic	 violence crimes,	satisfying	that	element	of	burglary

. See 17

- A	M.R.S.	§§ 209

- A , 210

- B , 211

- A

.6 focused	on	the	safety	of	the	occupant and	holding	“that	the	fact	finder	must	look beyond	legal	title	and	evaluate	the	tota lity	of	the	circumstances	in determining whether	 a	 defendant	 had	 license	 or	 privilege	 to	 enter” ) ; see	 also State	 v. Hagedorn ,	679 N.W.2d	666,	671	(Iowa	2004)	( “Surely	a	spouse	who	stays	in	the marital	residence	after	the	other	spouse	has	moved	out	should	b e	able	to	enjoy the	security	and	sanctity	of	his	or	her	home	without	the	necessity	of	obtaining a	restraining	order.” ) ;	15 M.R.S.	§	752	(202 3 )	(“ In	an	offense	in	any	way	relating to	real	or	personal	estate,	it	is	sufficient	and	not	a	variance	if	it	is proved	at	trial that,	when	the	offense	was	committed,	the	actual	or	constructive	possession	of [the	property] was	in	the	person	.	.	.	alleged	in	the	indictment	to	be	the	owner thereof

. ”). [¶1 1 ] T here	is	sufficient	evidence	in	the	record	from	which	the	jur y	could find	that	Ev ery	knew	that	he lacked the	right	to	possess	or	occupy the	house	the night	of	the	offense

. See	State	v.	Thomas ,	2022	ME	27,	¶	30,	274	A.3d	356. The jury	 heard	 testimony	 from	 the	 victim	 that	 she	 told	 Every that he	 needed	 to

move	out	ne arly	a	month	earlier	and	that	he	complied

. Every conceded	at	trial that	he	knew that the	victim	did	not	want	him there when	she	was	 there ,	he sought her permission	 to	be there the	day	of the	offense ,	and his	permission expired	at	6:00	p.m. The	jury	could	have	reasonably	found	that one generally7 does	not	ask	for	permission to	be	in	a	structure	they believe	they have	a	right

to possess	or	occupy . This is	supported	by	the	su rreptitious manner	in	which he	en tered	 the	house , in	 the	middle	of th e night , through	 the	basement. T he jury	rationally	could	have	found	that	Every	knew that he	was	not	licensed	or privileged	to	be	in	the	house at	the	time of	the	offense. The	entry	is: Judgment	affirmed.

James	P.	Howaniec,	Esq.,	Lewiston,	for	appella n t	Harry	D.	Every Neil	E.	McLean	Jr.,	District	Attorney,	and	Alexandr a	W.	Winter,	Asst.	Dist.	Atty., Prosecutorial	District	III,	Lewiston,	for	appellee	State	of	Maine

Oxford	County	Unified	Criminal	Docket	d ocket	number	CR

- 2020

- 30009 F OR C LERK R EFERENCE O NLY